Case a test for shielding sources

Robert Gavi, Times Union

By Robert Gavin

Updated 7:10 am, Monday, November 11, 2013

FILE -This June 4, 2013 file photo shows Aurora theater shooting suspect James Holmes in court in Centennial, Colo. Holmes is returning to court Monday Oct. 21, 2013 for another round of legal skirmishes over what evidence can be used against him when he goes on trial for the Colorado theater shootings. (AP Photo/The Denver Post, Andy Cross, Pool, File) ORG XMIT: CODEN601

Jana Winter broke a worldwide scoop about the midnight massacre at a suburban Denver movie theater as part of her job for Fox News.

Now she is the story — one whose next chapter will be written by the highest court in New York.

On Tuesday afternoon, the Court of Appeals will hear arguments on whether Winter, 33, of New York City, should be compelled to testify in Colorado to reveal the confidential sources behind her July 25, 2012, exclusive report.

Her story revealed the existence of a chilling notebook allegedly kept by James Holmes, the reputed gunman accused of murdering 12 people and injuring dozens more at the midnight showing of "The Dark Knight Rises" at an Aurora, Colo. theater on July 20, 2012.

The high court's ultimate decision could have drastic implications not only for Winter, but the rights of the news media to safeguard the identity of its sources. That right is protected in New York state, where the Shield Law protects reporters from revealing their sources regardless of how vital the information could be to an investigation.

"A journalist's ability to go beyond official press releases and uncover the facts that authorities, corporations, or even just private individuals might prefer be kept hidden — the very definition of an investigative reporter — depends almost entirely on the journalist's ability to cultivate and maintain relationships with sources," Winter attorney Christopher T. Handman stated in a brief. "If a New York reporter can be stripped of her protections under New York's public policy simply because the reporter crossed state lines, New York's robust public policy in favor of confidential sourcing will become a dead letter for all but the most parochial stories,"

Holmes attorneys Daniel N. Arshack and Richard D. Willstatter, both based in New York, argue that Winter should be forced to testify under the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases, a law adopted in all 50 states.

A Colorado judge determined Winter to be a material and necessary witness. In turn, a state Supreme Court judge in Manhattan ordered Winter to appear in Colorado, a decision supported by a 3-2 ruling at the Appellate Division of state Supreme Court in Manhattan.

"If the court in New York was to unilaterally decide that one class of citizens is immune from being subpoenaed to another state, we could expect that other states could likewise define safe no-subpoena-zones for various types of citizens that they particularly cherish: oilmen in Texas, movie stars in California, gamblers in Nevada, socialists in Vermont," Holmes' attorneys stated in their brief. "The list could go on."

Winter was a freelance reporter and documentary filmmaker in India who later obtained a master's degree in journalism from Columbia University. She worked at the New York Post for two years before moving to Fox News as an investigative reporter, where, according to court papers, she covers the crime beat and has "developed a specialty in reporting on mass killings."

"In the wake of Holmes' depravity, many were left asking 'why?'" Winter's attorney wrote in his brief. "This case is about Jana Winter's attempts to answer that question."

Attorneys for Holmes say the revelation of Winter sources is critical to their client's right to a fair trial. In her report, Winter quoted two anonymous law enforcement sources — one of whom told Winter that Holmes had mailed a notebook to a University of Colorado psychiatrist before the shooting.

"Inside the package was a notebook full of details about how he was going to kill people," one of the law enforcement sources said in the article. "There were drawings of what he was going to do in it -- drawings and illustrations of the massacre."

Winter also wrote that "among the images shown in the spiral-bound notebook's pages were gun-wielding stick figures blowing away other stick figures."

A Colorado judge had issued gag orders on law enforcement not to discuss the case — and specifically the writings.

In court papers, Holmes' lawyers noted more than a dozen officers who had access to the contents within the notebook were questioned about the leak under oath. None admitted being a source. The attorneys call it perjury and police corruption. They say they need to know the identity of the leakers so they can properly cross-examine those officers should they testify at Holmes' trial. If they cannot do that, they argue, Holmes will be deprived of his right to a fair trial.

In their brief they dismissed the suggestion by Winter's lawyers that her testimony would destroy her career in journalism since she would have burned a source.

"Winter's gloomy suggestion that her career will be derailed by complying with the subpoena is more baseless speculation based, again, on nothing but air," the lawyers wrote. "As will be discussed below, the opposite is far more likely. Many journalists who have complied with their legal duty to appear as witnesses subject to subpoenas have gone on to have spectacular careers...